Do employers have to accommodate the “childcare responsibilities” of their employees to the point of undue hardship? The Federal Court has confirmed that for federally regulated employers the answer is yes subject to the requirement that the childcare responsibility be a “substantial parental obligation”.
In Attorney General of Canada and Johnstone, 2013 F.C. 113, the Federal Court confirmed what the case law in Ontario, British Columbia and earlier federal human rights decisions had already established, that the prohibited ground of “family status” includes “childcare responsibilities”. The Federal Court held that an employee can establish a prima facie case of discrimination if he/she can prove that a workplace rule interferes with his/her ability to fulfill a “substantial parental obligation in any realistic way”. Therefore, employers have an obligation to accommodate the substantial parental obligations of their employees to the point of undue hardship or they will be exposed to human rights complaints.
In 2004, Ms. Johnstone, a Border Service Agent at Pearson, filed a human rights complaint at the Canadian Human Rights Commission alleging that her employer, the Canadian Border Services Agency (“CBSA”) had discriminated her contrary to the prohibited ground of family status when it failed to grant her request to work fixed, daytime hours that would allow her predictability with respect to the childcare arrangements of her two young children. The CBSA said that their unwritten policies prohibited the granting of a fixed, full time schedule to a full time Border Service Agent. However, the CBSA was prepared to grant Ms. Johnstone a fixed part-time schedule. Ms. Johnstone alleged the CBSA’s response was discriminatory because she would lose her full time employment status (and benefits and pension) and the CBSA had failed to demonstrate that it could not accommodate her without undue hardship.
The Canadian Human Rights Tribunal concluded that the CBSA had discriminated against Ms. Johnstone because its firm, yet unwritten rule, of not permitting a full time employee to have a fixed schedule of daytime hours discriminated against Ms. Johnstone’s employment opportunities including, but not limited to promotion, training, transfer, and benefits on the prohibited ground of family status. Further, the Tribunal held that the CBSA failed to demonstrate how accommodating Ms. Johnstone with a fixed full time schedule would constitute undue hardship or satisfy the elements of the Bona Fide Occupational Requirement test.
The Ministry of the Attorney General sought a judicial review of the Tribunal’s decision on the basis that the Tribunal had incorrectly concluded that the prohibited ground of family status included childcare responsibilities and that they had applied the incorrect test for when a complainant had established a prima facie case of discrimination.
First, the Federal Court held that “family status” included “childcare responsibilities”:
In result, I conclude the Tribunal’s conclusion that family status includes childcare obligations is reasonable. It is within the scope of the ordinary meaning of the words; it is in accord with decisions in related human rights and labour forums; it is in keeping with the jurisprudence; and it is consistent with the objects of the Canadian Human Rights Act.”
Second, the Federal Court held that an employee will establish a prima facie case when he/she can establish that an employment rule interferes with an employee’s ability to fulfill her substantial parental obligations in any realistic way.
Therefore, employers must be prepared to accommodate the “substantial parental obligations” of their employees and to the point of undue hardship. While the case law will no doubt expand on what constitutes a “substantial parental obligation”, employers should ensure that they consider an individualized plan of accommodation to the point of undue hardship in order to avoid a human rights complaint in the future. This will likely require some degree of flexibility in the workplace.
Simon Heath LL.B, M.I.R.
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